Ferguson v. Wexford Health Sources, Inc. et al

Filing 121

ORDER: The Court hereby ADOPTS IN PART the Report & Recommendations of Magistrate Judge Reona J. Daly (Doc. 117 ). Defendants Kurtis Hunter, Beverly Rockwell and Kendra Seip's Motion for Summary Judgment (Doc. 114 ) is GRANTED. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants and against Plaintiff and to close the case. Signed by Judge Staci M. Yandle on 11/1/2018. (bps)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES FERGUSON,

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, INC., et )
al.,
)
)
Defendants.
)

Case No. 15-CV-947-SMY-RJD

MEMORANDUM AND ORDER
Plaintiff James Ferguson filed an Amended Complaint asserting that his constitutional
rights were violated while he was an inmate at the Illinois Department of Corrections’ (“IDOC”)
Shawnee Correctional Center (“Shawnee”). (Doc. 59). He brings this action under 42 U.S.C. §
1983, alleging that Wexford Health Sources, Inc., its employees, and members of the
correctional staff at Shawnee violated his Eighth Amendment rights by being deliberately
indifferent to his serious dental needs.
Defendants Kurtis Hunter, Beverly Rockwell, and Kendra Seip (collectively, the “IDOC
Defendants”) filed a Motion for Summary Judgment (Doc. 114). This matter is now before the
Court on the Report and Recommendation of United States Magistrate Judge Reona J. Daly
(Doc. 117) recommending that the IDOC Defendants’ Motion be granted. Plaintiff filed a timely
objection (Doc. 120). For the following reasons, Judge Daly’s Report and Recommendation is
ADOPTED in part.
As an initial matter, the Court will not adopt the portions of the Report relating to parties
that were dismissed after the Report was filed. In particular, Wexford and Dr. Aldridge filed for
summary judgment (Doc. 112) and were dismissed voluntarily after the Report was issued
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(Docs. 118 and 119). As such, Judge Daly’s recommendation that Wexford and Aldridge’s
Motion be granted is DENIED as MOOT.
Since Ferguson filed a timely objection, this Court must undertake a de novo review of
Judge Daly’s findings and recommendations. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P.
72(b); SDIL-LR 73.1(b); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De
novo review requires the district judge to “give fresh consideration to those issues to which
specific objections have been made” and make a decision “based on an independent review of
the evidence and arguments without giving any presumptive weight to the magistrate judge’s
conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may
accept, reject or modify the magistrate judge’s recommended decision.” Id. Consistent with
these standards, the Court has reviewed Judge Daly’s Report de novo.
Background
The following facts are taken from Plaintiff’s deposition unless otherwise noted: Plaintiff
James Ferguson was an inmate at Shawnee at all times relevant to this lawsuit. (Deposition of
Plaintiff James Ferguson, Doc. 113-5 at 2). On April 28, 2015, Plaintiff visited the Dental
Department at Shawnee where he was evaluated by Steven Alridge, D.D.S. (Doc. 113-1 at 1).
Plaintiff requested the visit because he had a problem with one of his teeth (Doc. 113-5 at 5). Dr.
Aldridge ordered an x-ray of Plaintiff’s teeth and reviewed the results with Plaintiff in the
examination room (Id. at 4). Based on the x-ray results and his examination, Dr. Aldridge
informed Plaintiff that tooth #30 could be saved, and Plaintiff was placed on the list to receive a
new filling. (Id. at 4). Plaintiff was charged a $5.00 co-pay for the visit. (Id. at 4).
Two days later, Plaintiff submitted a grievance complaining that although an x-ray was
taken during the dental visit indicating that he would need a filling, and he paid his co-pay, he

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was told he would have to come back on a different date to receive the filling. (Doc. 116-1 at
91). Under “Relief Requested,” Plaintiff stated that he would speak to his lawyer about the
situation (Id.). The grievance was marked as received on May 6, 2015. (Id.). Defendant
Rockwell issued a Grievance Officer’s Report on June 10, 2015, stating that Rockwell had
reviewed the grievance and spoken to Dr. Dace, DMD, who reviewed Plaintiff’s medical jacket.
(Id. at 92). According to the medical record, Plaintiff was seen by the dental department on
April 28, 2015 and placed on the filling list. (Id.). He was charged a co-pay for the exam, x-ray,
and follow-up appointment to restore the tooth (Id.). Rockwell recommended that the grievance
be denied.

(Id.)

The Chief Administrative Officer, Defendant Hunter, concurred with

Rockwell’s recommendation. (Id.).
Plaintiff filed a second grievance regarding dental treatment on May 11, 2015 in which
he complained that he told the dental staff he was in pain but did not receive any pain
medication, and that he did not get any work done. (Id. at 93). In the grievance, he states that it
is “foolish” to be required to pay the money first and get the work done at a later time (Id.). The
grievance was received on May 18, 2015. (Id.).

Defendant Seip, a Grievance Counselor at

Shawnee, responded to this grievance, stating, “Per Dentist, he was seen by dental 4/28/15 and
placed on the filling list. He was charged $5.00 co-pay for the exam, x-ray, and follow-up
appointment” (Id.).
On June 13, 2015, Plaintiff was seen by a dentist but he refused treatment. (Doc. 113-5
at 6-7). He submitted an emergency grievance the same day, stating he had received a call pass
from the dental office and was told by the dentist that another tooth needed to be removed. (Doc.
116-1 at 96). Plaintiff complained that the dentist (later determined to be Dr. Leo Naroditsky)
wanted to pull a tooth that was not the problem, rather than filling the previously-identified

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tooth. (Id.). He also complained that he had been left in pain with an untreated tooth for 47
days. (Id.). On June 15, 2015, Defendant Hunter reviewed the grievance, determined it was an
emergency, and flagged it for expedited review. (Id.). The grievance was received by Defendant
Rockwell on July 7, 2015. (Id. at 95). Rockwell issued a Grievance Officer’s Report stating:
Per Laura LeCrone, offender Ferguson’s medical jacket was reviewed. Per the
documentation in the medical record he was seen by the dentist on 4/28/15 and
was placed on the list for a filling. He was then seen on 6/13/15 by request and at
that time it was suggested that a different tooth be pulled, in which he refused. He
remains on the filling list. If he continues to have pain/problems with his tooth, he
can request NSC until he is seen by the dental clinic. (Id.).
Rockwell recommended that the grievance be denied, and Hunter concurred. (Id.).
On August 12, 2015, Plaintiff submitted another emergency grievance, stating that he
was seen by dental on 4/28/15 and 6/13/15, and yet remained on the filling list and was still in
pain. (Id. at 98-99). He specifically complained that he has a very painful toothache in the lower
part of his mouth and that he has had pain for five months which makes it difficult to chew food
and to sleep (Id. at 99). Defendant Hunter reviewed the grievance on August 17, 2015 and
determined that it was an emergency and should be expedited. (Id. at 98). The next day, the
grievance was received by another Grievance Officer. (Id. at 97). The subsequent report states
that Dr. Burrell, DDS, indicated that Plaintiff’s tooth was extracted on September 4, 2015. (Id.).
The Grievance Officer recommended that the grievance be found moot, and Defendant Hunter
concurred. (Id.).
Discussion
The IDOC Defendants argue they are entitled to summary judgment because they were
not personally involved in the alleged constitutional violation, and Plaintiff failed to demonstrate
that they acted with a sufficiently culpable state of mind. They also claim qualified immunity.
Judge Daly found that summary judgment was appropriate on the first two bases, and Plaintiff
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has objected to these findings.
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
filed, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740,
745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). When deciding a summary judgment
motion, the Court views the facts in the light most favorable to, and draws all reasonable
inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735
F.3d 962, 965 (7th Cir. 2013) (citation omitted).
“A prison official's ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). In
order to succeed on a failure to protect claim, the plaintiff must establish two elements. First, the
plaintiff must show that that he “experienced, or was exposed to, a serious harm, [and] that there
was a substantial risk beforehand that that serious harm might actually occur.” Brown v. Budz,
398 F.3d 904, 910 (7th Cir. 2005). Second, the plaintiff must show that a defendant was
deliberately indifferent to that risk. Id. at 913. “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in the usual

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ways[.]” Farmer, 511 U.S. at 842.
Deliberate indifference occurs “where an official realizes that a substantial risk of serious
harm to a prisoner exists, but disregards it.... [and] may be found where an official knows about
unconstitutional conduct and facilitates, approves, condones, or turns a blind eye to it.” Perez v.
Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015) (citations omitted). “[R]equests for relief which
have fallen on deaf ears may evidence deliberate indifference[.]” Dixon v. Godinez, 114 F.3d
640, 645 (7th Cir. 1997).
If an inmate is under the care of prison medical professionals, a non-medical prison
official “will generally be justified in believing that the prisoner is in capable hands.” Arnett v.
Webster, 658 F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004)). However, a prison official may be found deliberately indifferent to an inmate’s serious
medical needs if “they have a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.” Hayes v. Snyder, 546 F.3d 516, 527 (7th
Cir. 2008). Prison officials who simply processed or reviewed inmate grievances lack personal
involvement in the conduct forming the basis of the grievance. Owens v. Evans, 878 F.3d 559,
563 (7th Cir. 2017); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Here, the evidence demonstrates that the IDOC Defendants lacked personal involvement
in the alleged deprivation of rights. None of them ordered or participated in the decision to order
the course of treatment that Wexford and its dentists pursued.

They simply processed or

reviewed Plaintiff’s grievances about that course of treatment.
Plaintiff argues that the “turning a blind eye” exception to lay prison officials’ right to
rely on medical staff applies, because the IDOC Defendants did not contact “relevant people,”
inquire about his specific place on the filling list, ask Dr. Naroditsky about his thought process at

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the June 13, 2015 appointment, or do any follow-up investigation as to when he would get the
tooth filled. In order to prevail on this theory, a plaintiff does not have to prove that officials
“literally ignored” his serious medical issue, but only that “the defendants’ responses were so
plainly inappropriate as to permit the inference that the defendants intentionally or recklessly
disregarded his needs.” Hayes, 546 F.3d at 524 (quotation omitted).

Negligence, gross

negligence, or even recklessness as that term is used in tort cases, is not enough. Shockley v.
Jones, 823 F.2d 1068, 1072 (7th Cir. 1987) (quotation omitted).
The undisputed material facts show that the IDOC Defendants inquired into Plaintiff’s
treatment with the dental staff and were told that he had been placed on the filling list to address
the issue. Plaintiff’s first two grievances did not claim that he was denied treatment, but that
treatment was deferred – specifically, that he had paid his $5 copay and did not want to wait for
another appointment to get his tooth filled. Defendants Rockwell and Seip inquired and were
told that Plaintiff had been x-rayed and evaluated and placed on the list to get his tooth filled. It
was not plainly inappropriate for them to conclude that Plaintiff was receiving adequate care, nor
for Defendant Hunter to agree with that interpretation.
Plaintiff’s third grievance stated that he was not given a filling at that appointment while
being told another tooth should come out. Again, Rockwell inquired and was told that Plaintiff
was on the list for treatment. Rockwell and Hunter reasonably relied on the dental staff’s
statement that Plaintiff was being treated. With respect to the final grievance, Hunter was
informed that the problem tooth had been extracted, making the question of when Plaintiff would
get his filling moot.
The IDOC Defendants’ failure to making searching follow-up inquiries about Plaintiff’s
exact place on the filling list, when he might expect to have his tooth filled, and why Wexford’s

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employees made their treatment decisions would not likely constitute negligence. It certainly
does not constitute the beyond-reckless mental state required for culpability under the deliberate
indifference standard.
For the foregoing reasons, the Court agrees with Judge Daly’s findings, analysis and
conclusions as to the IDOC Defendants, and ADOPTS her Report and Recommendation
regarding the claims against them. Accordingly, Defendants’ Motion for Summary Judgment
(Doc. 114) is GRANTED. The Clerk of Court is DIRECTED to enter judgment in favor of
Defendants and against Plaintiff and to close the case.
IT IS SO ORDERED.
DATED: November 1, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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